A diocesan chancellor’s observations
In 2014 we posted “Ignorance of the Faculty Jurisdiction Rules is no excuse…”, and expanding on this theme, “Risks of disregarding the faculty jurisdiction” in June 2016. The recent case Re St Peter & St Paul Pettistree  ECC SEI 6 concerned a “deliberate and avoidable” breach of the terms of the faculty by a professional on the list of DAC-approved architects.
At the conclusion of the judgment, Chancellor David Etherington QC made some general observations which were directed towards architects but were “just as applicable to PCCs and Petitioners”. He also observed that it may assist the DAC to have these general observations circulated within the diocese. In view of the general applicability of his comments and their non-case specific nature, we feel that these will be of interest beyond the Diocese of St Edmundsbury & Ipswich, and have reproduced them in full, below.
A faculty was granted in 2014 to authorise the redecoration of the interior of the St. Peter & St. Paul Pettistree using four coats of limewash. However, removal of the old emulsion revealed that the walls were poor condition, and were “patchy” and “deep green” in various area. It was then considered that four coats of limewash might be insufficient to cover the walls; the architect favoured a product called Zinsser Grade 1 paint (“ZS”). He obtained the PCC’s permission (but not the court’s) to use it, and instructed the contractors (R and J Hogg Limited, “RJH”) to use the paint instead of limewash, which they did with reluctance.
Within a month of application, the paint was peeling off the walls, and at the request of the Chancellor, the Archdeacon applied for a restoration order. The Chancellor granted the order, stating that the architect should not have directed the use of an alternative covering without obtaining first a variation of the faculty. He directed that the architect should meet the cost of the remedial work. He further observed that it may assist the DAC to have his general observations circulated within the diocese.
At paragraph 11, Chancellor Etherington summarized the issues to be addressed, viz.
. The Issues. These can be stated simply although the resolution of some of them is more complicated. (1) Did the application of ZS to the fabric of the Church require a variation of the existing Faculty? (2) Was that variation ever sought? (3) If not, was it anybody’s fault that the variation was never sought? (4) What was the consequence? (5) Should a Restoration Order be made? (6) In what terms? (7) Who should meet the court costs of this hearing? (8) Who should meet the Restoration Works’ Costs? (9) What is the way forward? (10) Are there any consequential orders that should be made?
With regard to the final issues, (10), he commented:
. (10A) – Are there any consequential orders that should be made? General Principles:
(a). This is the first time since I became Chancellor that I have found that a professional person, on the list held by the DAC of approved architects in the diocese, has deliberately breached a significant term of a Faculty.
(b). It should be obvious to any architect that where a variation to any Faculty is needed, it must be sought before the works are commenced.
(c). Believing that work unauthorised by Faculty can be undertaken anyhow, and that a Confirmatory Faculty will then be granted as a routine matter of no particular importance, is likely to prove a very grave mistake.
(d). Even where the works are carried out in an unauthorized way successfully and a Confirmatory Faculty is subsequently granted (usually because the Court’s hands are now tied) the very least that will happen is that, save in the most exceptional cases of emergency, the person committing the breach will be left in no doubt of the Court’s displeasure. Where the breach is deliberately caused or facilitated by someone in the position of an architect or contractor, then thought will always be given as to whether that person, firm or company should remain on any approved list in the diocese.
(e). Where the works are carried out unsuccessfully and a Restoration Order is made, then, as well as reputational damage and consideration of removal from any register of approved individuals, firms or companies, there are also likely to be awards against those responsible for it, comprising both costs for the hearing and for compliance with the Restoration Order. These costs may prove to be very heavy indeed.
(f). If any variation of a Faculty is sought, it must be approved by this Court before the works contemplated within the variation commence. It should never be assumed that retrospective consent will necessarily be given after the event by way of Confirmatory Faculty or that, even if it is, this will be in some way “routine” or without consequences.
(g). Professional men and women need to be particularly aware of this requirement. With their reputation and standing comes a high degree of trust. It is their particular responsibility never wilfully to breach a Faculty or facilitate its breach by others.
(h). If there is any perception gaining ground in the diocese that variations to Faculties are optional and that another route is simply to carry out the works and obtain a Confirmatory Faculty retrospectively (and I hope and believe that this is very unlikely) then it is a perception that needs to be altered very quickly.
(I). Although what I am saying in this guidance is directed towards architects because of the nature of the case I heard, it is just as applicable to PCCs and Petitioners. It is both very unwise and unlawful, as well as potentially very costly, to commence works until the Faculty has been sealed or to carry out works outside of, or to a different specification from, the Faculty until a variation has been granted by the Court. Confirmatory Faculties are rare, not always granted, and, save in exceptional circumstances, the necessity for such Faculties is viewed with displeasure by the Court. As in this case, unauthorised works may well end up with a costly Restoration Order requiring them to be undone.
(j). Accordingly, it may assist the DAC to have these general observations circulated.
In addition to the above general observations, it is pertinent to note the Chancellor’s case-specific comments in relation to the involvement of the architect, the contractor and the supplier of the paint.
“18.(7) – Who should meet the court costs of this hearing? [the architect] should meet the full court costs of this hearing. I have found that the breach was his fault. He instructed the unlawful application of ZS.
19.(8) – Who should meet the Restoration Works’ Costs? Subject to the caveat expressed in paragraph 17 about [Additional Works], the person who will meet the Restoration Works’ Costs is [the architect]. He said, in answer to a question of mine, that he would be prepared to be the supervising architect for the work required. I have considered very carefully whether he should be required, or have the right, to supervise the works himself. However, I have concluded that if the Petitioner’s choose not to instruct him to act in this capacity, I could not conclude this to be unreasonable.
The following facts may have caused a justifiable breakdown in the relationship between the Petitioners, the PCC and [the architect]: (a). His failure to do what he told them he would do in order to facilitate a variation of the Faculty; (b). His failure to inform the PCC that he had not done what he said he would do; (c). His failure to tell the PCC of the contractor’s reservations about the use of ZS paint at the time; and (d). His failure to tell the PCC about this reservation for a long period afterwards: a point emphasized by [the churchwarden] in his questions to [the architect].
“23.(10B) Are there any consequential orders that should be made? [the architect] specifically:
(a). I have to consider with the utmost anxiety whether [the architect] should be removed from any list of approved inspecting architects within this diocese.
(f). I have concluded that it would be unfair and disproportionate to ask the DAC to consider removing [the architect] from any approved or authorized list taking into account all of those features and, pre-eminently, that this is the first such occasion when he has behaved in the way I find he did in this case.
(g). I am confident that it will be the last time anything like this ever happens when [the architect] is the inspecting or supervising architect and even more confident that he understands the inevitable consequence if I am proved wrong.
“. At the conclusion of the hearing, I ruled that there had been a breach of the Faculty (as was admitted by all parties) and that there was no case to answer on the part of RJH that it had been in any way involved or complicit in or with the breach and I removed RJH from the citation. On the contrary, RJH behaved entirely properly and responsibly in my judgment throughout and the company should be commended for its professionalism and perception in this unfortunate narrative.”
Supplier of paint: Tor Coatings Ltd
“ (3) (m). ZS – [The architect] raised with me at the Directions phase whether Tor Coatings Ltd, the manufacturer, as I understand it, of ZS, should not be a party to these proceedings on the basis that it was responsible for the failure of the paint on the walls of this Church in that it may not have performed, or even been capable of performing, in the way it was described on its advertising literature or in oral representations, as permeability was an essential requirement.
(n). I declined to cite Tor for a number of reasons. First, Tor was not responsible for ZS being applied illegally to the fabric of the church. Second, the Consistory Court is not responsible for determining contractual relations between parties outside of the Faculty Jurisdiction. Three, I cannot see how, on the facts of the case, the Court would have any jurisdiction to make any orders in respect of Tor Coatings. Even if the first three considerations were not conclusive as barriers to citing, or in some other way joining Tor Coatings Ltd to these proceedings, there is, fourthly, no satisfactory expert evidence as to what actually caused the paint to fail.”
Although no Confirmatory Faculty was sought, reference to their application in cases such as this was made by the Chancellor. It is useful, therefore, to reiterate the legal issues involved. In Re Balham St Mary  All ER 193, Southwark Const Ct. [copy available here], Chancellor Garth Moore pointed out:
“[w]ork done without a faculty is illegal, and remains illegal for all time. If, however, a confirmatory faculty is granted, it means that from that point in time onwards the situation is legalized; but it does not retrospectively legalize what has already been done, and the perpetrators of the illegalities remain personally liable for any wrong they have committed, though for the future the confirmatory faculty brings them within the four walls of the future”.